Opinion
C/A 3:22-1463-MGL-PJG
01-20-2023
John Russell Swegan, Jr., Plaintiff, v. Ally Financial, Inc., Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Plaintiff John Russell Swegan, Jr., proceeding pro se, filed this civil action in the Richland County Magistrate Court. Defendant Ally Financial, Inc. removed the case to this court pursuant to the court's federal question jurisdiction under 28 U.S.C. § 1331. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Ally Financial's motion for summary judgment. (ECF No. 25.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Swegan of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Ally Financial's motion. (ECF No. 25.) Swegan filed a response in opposition to the motion (ECF No. 29), and Ally Financial filed a reply (ECF No. 30). Having reviewed the record presented and the applicable law, the court concludes that the motion should be granted.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. Swegan filed this action on a form complaint in the Richland County Magistrate Court. The entirety of his allegations state, verbatim:
Ally Financial, Inc. has falsely reported negative information for five years on Plaintiff's payment record to Experian, Transunion, Equifax and Consumer Protection Bureaus in Washington, D.C. and Columbia, SC Ally stated serious
delinquencies, charge-off and collections agencies which severely damaged my credit rating. Ally's report to BB&T bank caused a loan to be declined. Ally's incorrect payment record cause me to pay 41 payments on a 39 month Auto Lease.(Compl., ECF No. 1-2 at 2) (errors in original). Swegan did not list a cause of action or state a basis for the court's jurisdiction, but he did expressly seek a judgment for damages. Swegan also attached documents to the Complaint, including letters in which Swegan apparently informed Ally Financial that he disputed Ally Financial's reporting of delinquencies on his account to credit reporting agencies. (Compl., ECF No. 1-2 at 4-6.)
The allegations in the Complaint are declared under penalty of perjury.
Ally Financial filed a notice of removal in this court, asserting the court has federal question jurisdiction in this action because Swegan's allegations “necessarily implicate” violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681. (Notice of Removal, ECF No. 1 at 2.) Swegan has not challenged Ally Financial's construction of the Complaint. Ally Financial filed a motion for summary judgment and attached a declaration from Jasper Garrett, a records custodian for Ally Financial. Garrett swears that Swegan entered into a lease agreement for an automobile with a car dealership, who assigned the lease to Ally Financial. Garrett also swears that Swegan made several late payments during the lease agreement and never made the final monthly payment, even after the terms of the lease ended. Further, Garrett swears that Swegan signed a two-month extension to the lease agreement on December 12, 2015. (Garrett Decl., ECF No. 25-2 at 1-6.)
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Ally Financial's Motion
First, the court must determine the type of claim Swegan brings against Ally Financial. As stated above, Ally Financial construes the Complaint as asserting purported violations of the Fair Credit Reporting Act, and Swegan has not challenged that construction. On the other hand, Swegan's response to Ally Financial's motion for summary judgment does not address the merits of a claim pursuant to the Fair Credit Reporting Act or Ally Financial's arguments in favor of summary judgment; instead, Swegan raises a new allegation that Ally Financial forged Swegan's signature on three documents and asks the court to declare the lease invalid and award damages. Swegan attached to his response purported copies of the lease agreement extension and other documents he claims include his forged signature.
Swegan's assertions in his response are not declared under penalty of perjury.
Generally, the Fair Credit Reporting Act prohibits creditors from furnishing any information relating to a consumer to any consumer reporting agency if the creditor knows or has reasonable cause to believe that the information is inaccurate. 15 U.S.C. § 1681s-2(a). The Act does not provide for a private right of action against creditors for reporting false information, 15 U.S.C. § 1681s-2(c)(1) (excluding violations of § 1681s-2(a) from the civil liability provisions in §§ 1681n and 1681o), but creditors may be held liable for their failure to reasonably investigate or correct inaccurate information that has been properly disputed by the consumer. 15 U.S.C. § 1681s-2(b); Saunders v. Branch Banking and Tr. Co. of VA, 526 F.3d 142, 149 (4th Cir. 2008). Therefore, Swegan's only cognizable Fair Credit Reporting Act claim in this case, if any, must be based on his allegations that he disputed the accuracy of Ally Financial's reporting about him to the credit agencies and Ally Financial failed to correct the reports.
To establish a claim that a creditor failed to correct inaccurate information in violation of 15 U.S.C. § 1681s-2(b), a plaintiff must show that he notified a credit reporting agency of the disputed information, (2) that the credit reporting agency notified the defendant furnisher of the dispute, and (3) that the defendant then failed to reasonably investigate and modify the inaccurate information. Long v. Pendrick Cap. Partners II, LLC, 374 F.Supp.3d 515, 527 (D. Md. 2019) (citing Johnson v. MBNA Am. Bank, NA, 357 F.3d 426, 430-31 (4th Cir. 2004)).
Here, Swegan fails to put forth admissible evidence to support any of these elements. First, in a letter attached to his Complaint, Swegan indicates he informed Ally Financial that he disputed some of the information furnished by Ally Financial, but he puts forth no evidence that notified a credit reporting agency that he disputed the accuracy of the information or that a credit reporting agency notified Ally Financial. The lack of such evidence in the record is fatal to Swegan's claim because Ally Financial has no duty under the Act to investigate the accuracy of its report until it is notified of a dispute by a credit reporting agency. Mavilla v. Absolute Collection Serv., Inc., 539 Fed.Appx. 202, 208 (4th Cir. 2013). Additionally, Swegan fails to produce admissible evidence to dispute the evidence produced by Ally Financial showing that the information it furnished to credit reporting agencies was accurate. Swegan puts forth no admissible evidence to dispute the sworn testimony in Garrett's affidavit that Swegan made late payments during the life of the lease agreement and that Swegan has not made his final payment. While Swegan attaches purported copies of documents-including the lease agreement extension-that Swegan argues include his forged signature, he provides no admissible evidence that can authenticate the documents or support his claim that this signature is forged. See Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (stating the non-moving party has “the ultimate burden of demonstrating a genuine issue of material fact for trial” and that “[c]onclusory or speculative allegations do not suffice, nor does a “mere scintilla of evidence” in support of his case”) (internal citations and quotation marks omitted). Consequently, Ally Financial has demonstrated that there is no dispute of material fact as to Swegan's Fair Credit Reporting Act claim, and it is entitled to summary judgment as a matter of law.
RECOMMENDATION
Based on the foregoing, the court recommends Ally Financial's motion for summary judgment be granted. (ECF No. 25.)
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).